ALIENATION

Alienation of Joint Hindu Family Property:

Introduction

- Alienation or transfer of property is one of the incidents of ownership.

- Transfer of property inter vivos such as by sale, gift, mortgage, license or even on lease including
perpetual lease.
- Where a property is owned by more than one person, no single person can accrue the power to alienate
the whole of it, unless and until other co-owner expressly authorizes him to do so.
- According to Dharmashastras, there can be no indiscriminate transfer of joint family property to the
deteriment of its members.
- Vijaneshwar specifies in Mitakshara, that the joint family property can be transferred in three cases:
1. Apatkale
2. Kutumbharte

3. Dharmarthe
APATKALE, KUTUMBARTHE,
DHARMARTHE
► APATKALE:

- Refers to an emergency faced either by the family together or by one of its member or with respect to its
property.
- Expressed in Mitakshara as times of distress.
- Not a mere profitable transaction, but a transfer which is if not effected may result in loss to the family or
to their property or some other property owned by the family.
► KUTUMBARTHE:

- Benefits of ‘Kutumb’ or family members.

- It permits the transfer of property where the sale proceeds are utilized for the sustenance of the family
members, such as providing for their needs of food, clothing, shelter, education, medical expenses, etc.
► DHARMARTHE:
- For pious purposes i.e. for the performance of indispensable duties, such as funerals of ancestors.
REPHRASED CONCEPTS
► These concepts have been rephrased and diluted as a result of the interpretation of
these categories by the British Indian Courts in light of the needs of the society.
1. Legal necessity
2. Benefits of estate
3. Performance of religious and indispensable duties
 LEGAL NECESSITY

▪ Emerged as combination of ‘Apatkale’ and ‘Kutumbarthe’.

▪ Necessity that can be sustained in law or justified in law.
▪ For an alienation to be valid under legal necessity, there must be
i. Existence of a need or purpose i.e. a situation with respect to family members or its property that requires
money.
ii. For a lawful purpose i.e. it is not for an immoral, illegal purpose or one which is opposed to public policy.
iii. The family does not possess monetary or alternative resources from which the requirement can be met,
and
iv. The course of action taken by the Karta is such as an ordinary prudent person will take with respect to this
property
e.g. For providing for food, clothing and shelter to his family members; For the education of family members
 BENEFIT OF ESTATE

∙ Benefit - an advantage, betterment or profit.

∙ Estate – landed property
∙ A transaction that brings an advantage to the landed property of the family
∙ What transactions would amount to benefit of estate will depend on the facts and circumstances of each case, such
as:
(i) Where the alienation is for a defensive or protective purpose necessary for this or any other family property
(ii) Where it brings an advantage or improvement to the family estate
(iii) Where the transfer, according to Karta, will be suitable for the family estate. The transactions would be subject to 2
important conditions:
(a) The degree of prudence required from the Karta is higher than the level that is expected of a person when he deals
with his exclusive property and
(b) How the sale proceeds are to be utilized remains a major factor to be considered
e.g. Sale of inconveniently situated, encumbered and unprofitable property and the purchase in its place of property that is
a sound investment; Sale of property that could not easily be cultivated for purchase of cultivable land.
RELIGIOUS AND INDISPENSABLE
DUTIES

- Modern version of Vijaneshwar’s Dharamarthe.

- The Dharamashastras provided for elaborate rituals and ceremonies to be performed on various
occasions in a man’s life, and these rituals constitute an integral part of the life of a Hindu.
- These rites and ceremonies start even before the birth, continue during the lifetime, even after the
death of family members. Out of such ceremonies some are considered indispensable, while
others are optional.
- JHP can be alienated by the Karta for the performance of indispensable religious and charitable
purpose.
- The term indispensable makes the alienation unavoidable.
- For an alienation to be valid, it must be shown that the family did not possess alternative
resources from which money could be raised to spend in these ceremonies.
DOCTRINE OF PIOUS OBLIGATION

- The Dharmashastra’s emphasis on payment of debts of the father by the sons, was to save the soul
of the father from evil consequences, and was not directed towards benefiting the creditor or the
third parties.
Shift in the approach of ‘Doctrine of Pious Obligation’:
- The gradual implementation of this doctrine by the courts, shifted the focus from the benefits that
it may accord to the father, to the rights of creditors to have their money back.
- Now, if the sons wanted to escape the liability of payment of their father’s tainted debts, they had
to prove not only that the debt was for immoral, illegal, or improper purpose but also that the
creditor or purchaser had a knowledge of the fact that it was for such purposes or was
‘Avyavaharik’. The burden of proof therefore became very heavy for the son.
 Pious obligation turned into legal liabilities:

- The object is to do justice to the claims of the bonafide alienees and protect them against
frivolous or collusive claims made by the debtor’s sons challenging the transaction.
- ‘Pious obligation’ signify the performance of it by the son through a conscious voluntary
decision taken due to the special relationship of father and son to spiritually benefit his
creator and no outsider (with reference to the family) would have any role to play in it.
- The whole theory of pious obligations and spiritual or religious benefit to the father is in
fact, reduced to a secular principle of the creditor getting his due during his lifetime by
extending the liability of payment to the debtor’s son.
- The payment of one’s father’s debts is no longer a pious obligation, but has been turned
into a strict legal liability.
ABOLITION OF PIOUS OBLIGATION

► Abrogated by Hindu Succession (Amendment) Act, 2005

► s.6(4), HSA 1956.
► Law is prospective in application.
► Not applicable to alienation prior to 2005.
► Repayment of debts contracted by any Hindu would be his personal
responsibility and the male descendants would not be liable to the
creditor.
ANTECEDENT DEBTS

► A debt, the payment of which permits the father to sell the JFP, must be an antecedent
debt.

► ‘Antecedent’ means prior in time and an antecedent debt means a debt that is prior in
time to the present alienation of property by the father

► A debt that is not only prior in time and independent in origin of that particular dealing
or alienation such as mortgage, sale etc. but it must also have been taken by the father
himself and not for an immoral or illegal purpose.

► An alienation for the payment of an antecedent debt before the due date is valid.

► Where an alienation is sought to be justified on the ground that it was affected for the
payment of antecedent debts, there is no need to prove a legal necessity.
FATHER’S POWER TO ALIENATE
PROPERTY

► Until all the coparceners give their consent or the alienation is either for legal necessity,
benefit of estate, or for performance of a religious or indispensable duty, the father cannot
alienate it.

► An unauthorized alienation can be challenged and avoided at the instance of non-consenting

coparceners, but if the sale of properties is undertaken to pay the antecedent debts of the
father it is valid and permissible even to the extent of the whole of the estate.

► The coparceners can neither prevent the father from effecting such an alienation nor can they
obtain an injunction restraining him from doing so, the only remedy that they have is to ask a
partition.